Legal rules and society

1. The basic relationship

Law does not exist apart from society. Its rules are made by members of a society, for that society, and they work only if the society broadly accepts them. At the same time, law shapes the society it governs: it fixes who owns what, who may marry whom, what work conditions are permitted, who may vote. The relationship runs both ways, which is why the October 2023 question asks how they “impact each other”.

• Society to law. Customs harden into legal rules; new social problems (cyber-crime, environmental damage, data misuse) produce new laws; changed moral attitudes lead courts to reinterpret old ones.
• Law to society. Law abolishes practices (untouchability under Article 17, sati, bonded labour), creates institutions (panchayats, consumer commissions), and changes behaviour through incentives and penalties.

2. Law as a follower of society

The historical school took this side. Savigny said law grows with the people, strengthens with them and dies away when the nation loses its identity. Maine, in Ancient Law (1861), traced the movement of progressive societies “from Status to Contract”: legal relations once fixed by birth and family come to be fixed by free agreement. Ehrlich argued that the “living law” of society — the rules people actually follow in their associations — matters more than statutes and decisions.

The lesson is that law which runs too far ahead of social acceptance is ignored. The dowry prohibition law has existed since 1961, yet the practice continues widely, showing the limits of law that society does not support.

3. Law as a leader of society

Roscoe Pound described law as social engineering: the task of the legal order is to recognise and balance competing interests — individual, public and social — so as to secure as many of them as possible with the least sacrifice. Bentham, earlier, saw legislation as the instrument of the greatest happiness of the greatest number.

Indian examples of law leading:

• The Constitution itself, which abolished untouchability, guaranteed equality to women and provided reservations in a deeply hierarchical society.
• Hindu law reform of 1955–56: monogamy, divorce, and inheritance rights for daughters, carried further by the 2005 amendment making daughters coparceners.
• Judicial law-making. Vishaka v. State of Rajasthan, 1997 INSC 604, laid down workplace sexual harassment guidelines when there was no statute; Parliament followed with the 2013 Act.
• Access to justice. Public interest litigation from Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 INSC 34, onward opened the courts to people who could not reach them.

4. Factors that impact law

For the 6-mark note, list and illustrate:

1. Religion and morality — personal laws; offences against religion.
2. Custom and tradition — recognised customs; tribal law.
3. Economic conditions — land reform, labour codes, insolvency law.
4. Political ideology — the word “socialist” added to the Preamble in 1976; nationalisation and later liberalisation.
5. Public opinion and movements — the Criminal Law (Amendment) Act, 2013 followed the public response to the Delhi gang rape of December 2012 and the Justice Verma Committee report.
6. Science and technology — the Information Technology Act, 2000; the Digital Personal Data Protection Act, 2023.
7. International influences — treaties and conventions, used in Vishaka to fill the gap in domestic law.

5. When law diverges from the needs of the people

Law and society can fall out of step in two directions: law can lag behind changed social values, or it can be imposed on a society not ready for it. The consequences of divergence:

• Non-compliance and disrespect for law — the rule exists on paper but is evaded (dowry, child marriage in some regions).
• Injustice to individuals — outdated rules punish conduct society no longer condemns. Section 377 IPC was upheld in Suresh Kumar Koushal v. Naz Foundation, 2013 INSC 823, and then read down five years later in Navtej Singh Johar v. Union of India, 2018 INSC 790, the Court holding that constitutional morality, not majority opinion, governs.
• Social conflict — when a decision or law goes faster than a community accepts. In Mohd. Ahmed Khan v. Shah Bano Begum, 1985 INSC 97, (1985) 2 SCC 556, the Court held that a divorced Muslim wife unable to maintain herself could claim maintenance under section 125 of the Code of Criminal Procedure. The protests that followed led Parliament to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986.
• Pressure for reform — divergence is also what drives change: Law Commission reports, amendments and fresh interpretation.

How this is examined

The relationship essay is the second most frequent question in the paper. Structure it as: the two-way relationship; law as follower (Savigny, Maine, Ehrlich) with an example; law as leader (Pound, Bentham) with two or three Indian examples; the divergence problem with Shah Bano or Navtej; conclusion. The 6-mark notes on factors or divergence use sections 4 and 5 alone.